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Pirates, PSC, and Lawyers

For years now more and more people have been suggesting that deploying private security contractors aboard should be done as a way to deter and defeat pirates attacking commercial shipping off the coast of Somalia.

This idea has gained currency since the rash of pirate attacks in 2008 caused the international community to rush a flotilla of naval ships into the waters off the Horn of Africa in an effort to protect international shipping passing through the Gulf of Aden.

But that has hardly stopped the attacks. The pirates have proved resilient and adaptable and more brazen. Pirates launched 47 attacks in the region off the east coast of Somalia, which the Navy calls the Somali basin, in the first four months of this year, up from 37 during the same period last year, according to U.S. 5th Fleet statistics.

According to the International Maritime Bureau Piracy Reporting Centre there were more hijacked vessels and hostages taken in 2008 than in any other year since the PRC began reporting on worldwide piracy statistics in 1992.

And everyone recognizes that the regular naval ships are not going to stay there. The bottom line is that it is not cost effective. Sending billions of dollars worth of warships to chase a ship worth $1,000 is a losing proposition. Today, there is an average of about 25 naval ships patrolling the area.

Even with the increased presence of the coalition warships the U.S. Navy admits that the limited coalition fleet can only patrol a small percentage of the 2.5 million square miles of waters off the Horn of Africa.

Deploying armed guards aboard ships is not without its critics, including many shipping companies themselves. And the record of armed guards, thus far, is mixed. But the idea itself is hardly new. As I noted in 2008 private security contractors have been working the maritime beat for many years now, and not just off Africa. In fact, centuries ago the East India Company employed private convoys to protect its ships from pirates.

While it remains to be seen if the pirates themselves care about facing private security contractors (PSC) it certainly seems to be grabbing the attention of lawyers. Two recent law journal articles address the issue from opposing viewpoints.

First up is Jill Harrelson, who graduates this month with a J.D. from American University, Washington College of Law . She wrote an article titled “Blackbeard Meets Blackwater: An Analysis of International Conventions that Address Piracy and the Use of Private Security Companies to Protect the Shipping Industry” in the current issue of the American University International Law Review.

She acknowledges that private security companies can legally provide armed guards to the shipping industry. American private security companies sailing under the American flag are allowed to have armed guards aboard vessels. In addition, these companies will not run into legal problems in Somalia’s territorial seas because there is no functioning government in Somalia. As long as the companies are in compliance with the laws of every other territorial sea through which they travel to reach the Gulf of Aden, it is legal for private security companies to provide armed guards.

But she notes that private security companies must abide by the laws of all territorial seas through which they travel. In addition, these companies must always comply with the laws of the vessel’s flag state. Therefore, even if a ship’s flag state allows for armed guards, vessels will encounter problems when navigating through numerous territorial seas.

For example, problems will potentially arise when a ship travels through territorial seas that do not allow armed guards or which have stringent gun control laws. Ships are not capable of easily removing prohibited weapons when travelling by sea.

She concludes that::

Arming vessels creates a potential situation of escalated costs and violence. Innocent crew members are more likely to suffer the negative consequences of having armed guards on vessels. The pirates claim to have no desire to hurt the crew members but they do fire assault rifles “indiscriminately” during attacks. Violence could quickly escalate and produce deadly consequences if an armed guard began firing back. The crew members are currently safer being taken hostage rather than being caught in the middle of a gun battle. Some argue that the uncertainty of not knowing whether a vessel is armed creates a beneficial deterrent effect. However, ships can utilize plenty of other defense mechanisms to deter pirates that do not threaten the lives of the crew members.

It has been suggested that the U.N. could facilitate putting professionally-trained armed guards aboard ships. Yet, it is highly unlikely that all countries could reach an agreement because not every country directly benefits from maritime commerce. n194 Ultimately, the dangers to the crew members outweigh the potential deterrent effect of putting armed guards on vessels and companies like Blackwater Worldwide and HollowPoint Services should not provide armed guards to the shipping industry. Furthermore, private security companies do nothing to help address the underlying problems of piracy or aid in the effective prosecution of pirates.

Now consider Michael L Mineau who wrote the article “Pirates, Blackwater and Maritime Security: The Rise of Private Navies in Response to Modern Piracy” published in the Spring 2010 issue of the Journal of International Business and Law.

Mineau rebuts some of the standard arguments against using PSC. For example, the concern that the use of firearms could escalate situations, resulting in loss of life. Mineau notes that if ship-owners are looking to increase security onboard their vessels by arming someone, it might be better to rely on highly-trained professional contractors to provide armed security than on arming inexperienced crew members not trained in the array of skills that PSC personnel have. In the event of a piratical attack on an unarmed cargo vessel, the arrival of a coalition warship ordering the pirates to stand down might escalate a situation more than would the presence of a handful of highly-trained and well-equipped private contractors.

Another concern with the use of PSCs is that many flag states discourage the use of armed guards and also restrict commercial vessels from carrying arms aboard. But members of the U.S. Navy have expressed their support of the use of private security contractors. And Somali official Abdulkadir Muse Yusuf, the deputy marine minster of Puntland, has stated that PSCs are “welcome” in Somalia’s waters.

And a recent exclusive agreement between HollowPoint’s subsidiary HP Terra-Marine and the government of Yemen might signal a new era of partnerships between coastal states and private security contractors. By closely regulating and monitoring the operations of PSCs, coastal states can ensure that PSCs maintain the highest standards of professionalism and accountability, while at the same time being able to generate tax revenue from these companies’ operations. And by arming PSCs instead of crews, vessel owners also avoid the problem of entering port states with differing regulations on carrying onboard weapons, placing this burden on PSCs.

Another argument against the use of PSCs is that many protection and indemnity insurers discourage the use of armed guards. But this position is not supported by any hard evidence. Furthermore several sources seem to directly contradict this claim. A recent partnership between Hart Security, a PSC, and Swinglehurst Ltd., a marine insurer, to provide War Risk Coverage to vessels protected by Hart Security personnel is one example of the marine insurance industry favoring the use of PSCs. The move by marine insurers to reduce charges for vessels by up to 40 percent if protected by private security is another example of the insurance industry supporting PSCs at sea.

The possibility of fire, explosion, or sinking of vessels under attack is another argument against employing PSCs. This concern is legitimate, but if insurers and shipping companies are trying to avoid paying enormous ransoms for the safe return of vessels, crew, and cargo by employing the use of PSCs, then any increased risk of fire, explosion, or sinking can simply be calculated and factored into future insurance premiums.

Other concerns raised with respect to the use of PSCs are some of the practical operational concerns, including “command and control, rules of engagement, use of deadly force, weapons security, [and] intra port/ship transfer of weapons and guards.” These issues could all be addressed through further cooperation between PSCs, port states, and the international maritime community to establish uniform and clear protocol for PSCs to follow.

Mineau concludes:

Several possible solutions to the legal and practical issues of maritime PSCs might in the future make the use of these companies more viable, legitimate, and even preferred. One option is for flag state to license “sea marshals” under some type of uniform international licensing regime, where regulations and standards would govern weapons, engagement, personnel training and qualification, and penalties. Another option is for an international non-government organization or non-profit to closely monitor and regulate PSC activities. A third option, which would probably take at least several years, would be for the United Nations to adopt a comprehensive convention regulating PSCs and defining the areas where they are permitted to operate. As the international community is gradually beginning to consider the potential concerns and benefits with vessel owners using maritime PSCs to provide security in response to piracy, these companies continue to quietly expand their operations, train additional personnel, acquire old ships and refurbish them into high-tech security vessels, and enter into security contracts with many of the world’s largest shipping companies. While legitimate concerns over territorial sovereignty make the use of PSCs problematic, the navies of the world have been ineffective at preventing and combating piracy. Therefore, the use of private security at sea is not only a viable option, but a necessity for many shipping companies routinely facing this threat. Private navies are on the rise, and the international community should respond to this trend by uniting in a cooperative effort to reach some type of acceptable compromise on how PSCs should be regulated.